Cape Coral looks to regulate news racks

April 6, 2013

An ordinance that would regulate the placement, installation, maintenance and exterior content on newspaper boxes in the city of Cape Coral will be introduced Monday.

Sponsored by Councilmember Marty McClain, the ordinance would establish placement standards with regard to public rights-of-way, sidewalks, driveways, bus stops and no parking zones; dictate how close they could be to other boxes; mandate that publication racks and boxes be installed on concrete pads and establish maximum size; and would prohibit advertising on the outside of the boxes.

The public hearing date, at which resident and council comment will be heard, is scheduled for April 22.

McClain said the ordinance, which is patterned after a similar measure adopted by the city of Bonita Springs, is not aimed at either the Breeze Newspapers or Gannett Co. Inc., which publish The Breeze and the Lee County Shopper, and the News-Press respectively.

The ordinance is intended to give the city the ability to remove abandoned boxes while also addressing safety concerns and aesthetics issues, he said.

"Basically, there are areas around the city that have abandoned or no-longer-used information boxes," McClain said in a telephone interview. "This is just to clean up these areas, and it's also a curb appeal and safety issue all at the same time.

"It's not the News-Press or The Breeze, it's the free publications that seem to be the problem," he added. "You guys aren't the culprit here. It's the free publications out there. It appears to be cars, boats."

McClain said he has been receiving complaints for the last year or so that there are numerous abandoned boxes. Without an ordinance, the city has no authority to pick them up.

"There could be several hundred of them, they're everywhere," McClain said.

"They appear not to have been used for a long time, they appear to have been set up and left there, and we're not allowed to remove them."

He chose to pattern the proposed measure on the Bonita ordinance because he said it was less restrictive than others at which he looked.

"We're not looking for color uniformity," he said. "We're just asking for them to be safe and functionable."

He said he also tried to stay away from anything that could be construed as a possible First Amendment issue.

He was asked, then, about the provision that would prohibit "the display of signs or placement of placards, other than to promote the newspaper, periodical or other publications, contained there in," restricting such content to be displayed "only on the interior window display of the vending machine."

"Rack cards" - promotional placards - are a common element of newspaper boxes, some which are constructed with an exterior slot to hold the cards while others have an interior slot and a second window. Some companies also use stickers to highlight special promotions.

The ordinance also establishes content guidelines as to what can be viewed by the public and possibly be construed as obscene.

"That could get slippery," McClain said. "I would be willing to take a challenge of it; it becomes everyone's interpretation of what's obscene. I'm not doing what anyone hasn't done before."

Florida Press Association Attorney Sam Morley said while government agencies can regulate newspaper racks with regard to placement along rights-of-way and narrowly address aesthetic concerns, an outright ban of third-party advertising on rack cards is problematic.

"Commercial speech like rack card advertising is a form of protected speech," Morley said. "By banning all rack cards, the City seems to be restricting First Amendment expression in a fairly heavy handed manner, that is in a way that is 'substantially broader than necessary,' which is the test. I have not seen the precise language but the outright ban of all rack card advertising arguably gives city officials censorship over protected speech.

Cape Coral Breeze Publisher Scott Blonde said he looks forward to some discussion on the proposal.

"We look forward to opening some dialog," Blonde said. "We are gratified that Councilmember McClain has said that the Breeze Newspapers is not a problem. We, in fact, welcome the opportunity to discuss how we may be part of the solution, which is to make sure the city has the tools to remove abandoned boxes. We are not as certain that the answer is to go beyond that need to regulate such things as the content we choose to display on the outside of our boxes."